Tongass Roadless Rule White Paper

Intervention in Tongass Roadless Rule Litigation

General Information

• The Tongass National Forest (TNF) is 16.9 million acres, and contains 5.6 million congressionally designated wilderness and 580,000 acres of congressionally designated LUD II areas, which are roadless and in which development and timber harvest is severely restricted.
• 9.6 million acres of inventoried roadless areas in the TNF are included in the Roadless Rule.

Impacts of the Roadless Rule

• Timber: The Forest Service admits in the 2001 Roadless Final Environmental Impact Statement (FEIS) that the total direct and indirect job and income losses from timber harvest restrictions would be 864 to 895 jobs and $37.3 to $38.7 million. The Forest Service acknowledged that the immediate prohibition on road construction would eliminate 95% of the timber harvest from the affected areas. The Forest Service concluded that “the long-term ecological benefits to the nation of conserving this inventoried roadless areas outweigh the potential economic loss to those local communities…”
• Hydropower: The Roadless Rule does not provide an exemption for, or even discuss, existing hydropower or future hydropower opportunities in the TNF. Significant hydropower sites exist on the TNF that require road access to move heavy equipment from tidewater to the hydro site, which is not even discussed in the Roadless Rule. The Rule also does not provide exemptions for the development and construction of the power lines needed to transmit hydro power.
• Geothermal Power, Wind and other Renewable Power: The Roadless Rule prohibits new projects under the Mineral Leasing Act “because of the potentially significant impacts that road construction could cause to inventoried roadless areas…” Geothermal leasing comes under the Mineral leasing Act.
• Mining: While “reasonable access” to locatable minerals is technically authorized in Wilderness and Inventoried Roadless Areas (IRAs), there are very few mines in Wilderness Areas. Even though the Roadless Rule specifies: “Reasonable rights of access may include, but are not limited to, road construction and reconstruction, helicopters, or other non-motorized access, the experience of the mining community is that Special Use Permits permitting road access in or near Wilderness Areas are very difficult to obtain.
• NOTE: Although parties have claimed that exploration is allowed (and in fact helicopter landing pads at the Bokan Mine site have been allowed), no road construction is authorized. While road access is theoretically allowed, gaining permission for road construction to develop a project will cause unnecessary delays at best and at worst provide multiple and viable opportunities for those wishing to halt any development. Additionally, approval of helicopter landing pads is a long way from approval for a road.

 

History of the Roadless Rule

• 1999: Under the Clinton Administration, in its final days, the US Forest Service suspended all road construction and reconstruction in certain roaded areas of the National Forest System. The TNF was excluded. President Clinton issued the Roadless Area Conservation Initiative, which stated that he found it to be “in the best interest of our Nation…to provide strong and lasting protection for these forests” and directed the Forest Service “to develop…regulations to provide long-term protection for most or all of these currently inventoried ‘roadless’ areas and to determine whether such protection is warranted for any smaller ‘roadless’ areas not yet inventoried.” The Forest Service then issued a Notice of Intent to prepare an Environmental Impact Statement (EIS), which in part, asked for public comment on whether the TNF should be included in the roadless rule.
• 2001: The Forest Service signed and published the Roadless Final Environmental Impact Statement (FEIS) which did not exempt the TNF and was contrary to the Draft Environmental Impact Statement (DFIS), which included the exemption. The changes made in the FEIS and adopted in the Roadless Rule were not explained nor made available for public review and comment. The Roadless Rule provided that prohibitions did not apply to timber harvesting activities registered prior to 2001.
• 2001: The State of Alaska filed suit against the 2001 Final Roadless Rule on the ground, among others, that it violated the “no more” clause of ANILCA, and the Tongass Timber Reform Act (TTRA) requirement that the Forest Service seek market demand for timber in the TNF.
• 2003: The Bush Administration settles with the State of Alaska temporarily exempting the TNF with intent to make exemption permanent. However, the Forest Service never started final rulemaking process.
• 2005: The Bush Administration adopts a new “State Petition Rule” that repeals and replaces the Roadless Rule. Additionally, the 10th Circuit Court of Appeals dismisses a 2003 Wyoming case, making the Roadless Rule moot. However, California, New Mexico and Oregon and 20 conservation groups file suits seeking to invalidate the State Petition Rule and reinstate the Roadless Rule.
• 2006: San Francisco magistrate judge invalidates the State Petition Rule and orders reinstatement of the original Roadless Rule, except in the Tongass.
• 2008: Wyoming federal district court issues a second decision invalidating and enjoining the Roadless Rule nationwide. Obama Administration immediately appeals. This appeal is pending in the 10th Circuit Court of Appeals.
• 2009: The 9th Circuit Court of Appeals affirms the California decision reinstating the 2001 Roadless Rule. Meanwhile, conservation groups sue in Alaska federal district court challenging the validity of the Tongass exemption.
• May, 2011: Judge Sedwick invalidates the Tongass exception and reinstates the Roadless Rule in the TNF.
• June 2011: The State of Alaska Sues in the District Court for District of Columbia to enjoin the application of the Roadless Rule to the national forests in Alaska.

State’s Lawsuit

The Roadless Rule violates:
• The Administrative Procedures Act (APA): A federal agency’s action is arbitrary and capricious if it fails to consider an important aspect of a problem. In this case, the Forest Service deemed it has a responsibility to consider the “whole picture” in managing the National Forest System, failing to acknowledge the uniqueness of the TNF and communities within it, the provisions of ANILCA and the TTRA which prohibit the US Dept of Agriculture from designating additional wilderness areas in Alaska, and any resource or industry other than timber.
• Alaska National Interest Lands Conservation Act (ANILCA) of 1980: Congress found in ANILCA that it had properly balanced conservation and development in the TNF. Congress made it clear that its judgment was not to be second-guessed by the Forest Service (“unless expressly authorized by Congress, the Department of Agriculture shall not conduct any further statewide roadless area review and evaluation of the National Forest Systems lands in the State of Alaska for determining their suitability for inclusion in the National Wilderness Preservation System. Wyoming v. US Dept of Agriculture states “uses in inventoried roadless areas are even more restricted than those permitted in congressionally designated wilderness areas”.) Additionally, ANILCA requires a Congressional joint resolution of approval for a withdrawal of more than 5,000 acres for more than one year, which the Forest Service failed to obtain.
• The Wilderness Act: This act reserves the authority to designate wilderness areas exclusively to Congress. The District Court for the District of Wyoming determined that the Roadless Rule management of inventoried roadless areas amounts to de facto wilderness and thus usurps Congressional authority under the Wilderness Act.
• The National Forest Management Act (NFMA): Each national forest is to be managed in accordance with a comprehensive forest plan and no significant amendments to the plan may be adopted without analysis and public comment. The Roadless Rule amended the 2008 Amended TLMP without following the process set out in the NFMA.
• The Tongass Timber Reform Act (TTRA) of 1990: requires the Forest Service to “seek to provide a supply of timber from the TNF” which meets market demand; an amount determined to be 267 million board feet. Under the restrictions of the Roadless Rule, it would only be possible to harvest 50 mmbf – a shortfall of 73 to 77 mmbf. This takes away the Forest Service’s ability to exercise its discretion to meet market demand and thus effectively repeals Section 101 of the TTRA .
• The National Environment Policy Act (NEPA): This requires agencies to prepare an EIS that includes appropriate alternatives. The Forest Service limited alternatives to only those that precluded road construction, which resulted in insufficient alternatives such as exemptions for hydropower construction, geothermal construction, wind turbine construction and transmission lines. It also failed to consider mineral withdrawal exemptions because they were to be considered in the TLMP. NEPA was also violated because the Forest Service did not prepare a Supplemental Environmental Impact Statement to address the inclusion of the TNF before approving the FEIS

Intervenor’s Claims

• Because most SE communities are nearly surrounded on land by inventoried roadless areas of the TNF, the Roadless Rule significantly limits the ability of communities to develop road and utility connections that almost all other communities in the US take for granted.
• First Things First Alaska Foundation (FTF) is a nonprofit Alaska corporation organized for charitable and/or educational purposes. FTF members engage in natural resource development activities, natural resource development jobs, and natural resource related jobs on the Tongass National Forest in Southeast Alaska. Juneau is the headquarters office and bedroom community for two underground hardrock mines. Both of these mines are located within or are surrounded by IRAs. FTF members participate directly and indirectly in the economies of these two underground mines. FTF participated in the planning and permitting process for the latest of these mines to help educate the populous and others about the importance of development of that mine to the local and regional economy. Continued development of that mine and employment related to its expansion is vital to maintaining the current Juneau population in the face of declining revenues from declining Alaska oil production.
• FTF members participate directly and indirectly in renewable energy (hydro, geothermal, wind, tide, wave, and biomass) on the Tongass National Forest, none of which could be developed in the IRAs due to the 2001 Rule’s prohibitions on road and power line construction and distribution.
• FTF members also participate directly and indirectly in developing hydropower for export to the greater North American electrical grid via the Northern B.C. Hydro power line extension. If the many renewable hydroelectric power sites in Southeast Alaska were linked to the North American Grid, this extensive generating potential could be developed far beyond the power requirements of Southeast Alaska to the betterment of all North American consumers and the economic viability of the region. The inability to construct hydroelectric projects, roads, and power lines within the IRAs would cause the loss of this opportunity.Intervention in Tongass Roadless Rule Litigation

General Information

• The Tongass National Forest (TNF) is 16.9 million acres, and contains 5.6 million congressionally designated wilderness and 580,000 acres of congressionally designated LUD II areas, which are roadless and in which development and timber harvest is severely restricted.
• 9.6 million acres of inventoried roadless areas in the TNF are included in the Roadless Rule.

Impacts of the Roadless Rule

• Timber: The Forest Service admits in the 2001 Roadless Final Environmental Impact Statement (FEIS) that the total direct and indirect job and income losses from timber harvest restrictions would be 864 to 895 jobs and $37.3 to $38.7 million. The Forest Service acknowledged that the immediate prohibition on road construction would eliminate 95% of the timber harvest from the affected areas. The Forest Service concluded that “the long-term ecological benefits to the nation of conserving this inventoried roadless areas outweigh the potential economic loss to those local communities…”
• Hydropower: The Roadless Rule does not provide an exemption for, or even discuss, existing hydropower or future hydropower opportunities in the TNF. Significant hydropower sites exist on the TNF that require road access to move heavy equipment from tidewater to the hydro site, which is not even discussed in the Roadless Rule. The Rule also does not provide exemptions for the development and construction of the power lines needed to transmit hydro power.
• Geothermal Power, Wind and other Renewable Power: The Roadless Rule prohibits new projects under the Mineral Leasing Act “because of the potentially significant impacts that road construction could cause to inventoried roadless areas…” Geothermal leasing comes under the Mineral leasing Act.
• Mining: While “reasonable access” to locatable minerals is technically authorized in Wilderness and Inventoried Roadless Areas (IRAs), there are very few mines in Wilderness Areas. Even though the Roadless Rule specifies: “Reasonable rights of access may include, but are not limited to, road construction and reconstruction, helicopters, or other non-motorized access, the experience of the mining community is that Special Use Permits permitting road access in or near Wilderness Areas are very difficult to obtain.
• NOTE: Although parties have claimed that exploration is allowed (and in fact helicopter landing pads at the Bokan Mine site have been allowed), no road construction is authorized. While road access is theoretically allowed, gaining permission for road construction to develop a project will cause unnecessary delays at best and at worst provide multiple and viable opportunities for those wishing to halt any development. Additionally, approval of helicopter landing pads is a long way from approval for a road.

History of the Roadless Rule

• 1999: Under the Clinton Administration, in its final days, the US Forest Service suspended all road construction and reconstruction in certain roaded areas of the National Forest System. The TNF was excluded. President Clinton issued the Roadless Area Conservation Initiative, which stated that he found it to be “in the best interest of our Nation…to provide strong and lasting protection for these forests” and directed the Forest Service “to develop…regulations to provide long-term protection for most or all of these currently inventoried ‘roadless’ areas and to determine whether such protection is warranted for any smaller ‘roadless’ areas not yet inventoried.” The Forest Service then issued a Notice of Intent to prepare an Environmental Impact Statement (EIS), which in part, asked for public comment on whether the TNF should be included in the roadless rule.
• 2001: The Forest Service signed and published the Roadless Final Environmental Impact Statement (FEIS) which did not exempt the TNF and was contrary to the Draft Environmental Impact Statement (DFIS), which included the exemption. The changes made in the FEIS and adopted in the Roadless Rule were not explained nor made available for public review and comment. The Roadless Rule provided that prohibitions did not apply to timber harvesting activities registered prior to 2001.
• 2001: The State of Alaska filed suit against the 2001 Final Roadless Rule on the ground, among others, that it violated the “no more” clause of ANILCA, and the Tongass Timber Reform Act (TTRA) requirement that the Forest Service seek market demand for timber in the TNF.
• 2003: The Bush Administration settles with the State of Alaska temporarily exempting the TNF with intent to make exemption permanent. However, the Forest Service never started final rulemaking process.
• 2005: The Bush Administration adopts a new “State Petition Rule” that repeals and replaces the Roadless Rule. Additionally, the 10th Circuit Court of Appeals dismisses a 2003 Wyoming case, making the Roadless Rule moot. However, California, New Mexico and Oregon and 20 conservation groups file suits seeking to invalidate the State Petition Rule and reinstate the Roadless Rule.
• 2006: San Francisco magistrate judge invalidates the State Petition Rule and orders reinstatement of the original Roadless Rule, except in the Tongass.
• 2008: Wyoming federal district court issues a second decision invalidating and enjoining the Roadless Rule nationwide. Obama Administration immediately appeals. This appeal is pending in the 10th Circuit Court of Appeals.
• 2009: The 9th Circuit Court of Appeals affirms the California decision reinstating the 2001 Roadless Rule. Meanwhile, conservation groups sue in Alaska federal district court challenging the validity of the Tongass exemption.
• May, 2011: Judge Sedwick invalidates the Tongass exception and reinstates the Roadless Rule in the TNF.
• June 2011: The State of Alaska Sues in the District Court for District of Columbia to enjoin the application of the Roadless Rule to the national forests in Alaska.

State’s Lawsuit

The Roadless Rule violates:
• The Administrative Procedures Act (APA): A federal agency’s action is arbitrary and capricious if it fails to consider an important aspect of a problem. In this case, the Forest Service deemed it has a responsibility to consider the “whole picture” in managing the National Forest System, failing to acknowledge the uniqueness of the TNF and communities within it, the provisions of ANILCA and the TTRA which prohibit the US Dept of Agriculture from designating additional wilderness areas in Alaska, and any resource or industry other than timber.
• Alaska National Interest Lands Conservation Act (ANILCA) of 1980: Congress found in ANILCA that it had properly balanced conservation and development in the TNF. Congress made it clear that its judgment was not to be second-guessed by the Forest Service (“unless expressly authorized by Congress, the Department of Agriculture shall not conduct any further statewide roadless area review and evaluation of the National Forest Systems lands in the State of Alaska for determining their suitability for inclusion in the National Wilderness Preservation System. Wyoming v. US Dept of Agriculture states “uses in inventoried roadless areas are even more restricted than those permitted in congressionally designated wilderness areas”.) Additionally, ANILCA requires a Congressional joint resolution of approval for a withdrawal of more than 5,000 acres for more than one year, which the Forest Service failed to obtain.
• The Wilderness Act: This act reserves the authority to designate wilderness areas exclusively to Congress. The District Court for the District of Wyoming determined that the Roadless Rule management of inventoried roadless areas amounts to de facto wilderness and thus usurps Congressional authority under the Wilderness Act.
• The National Forest Management Act (NFMA): Each national forest is to be managed in accordance with a comprehensive forest plan and no significant amendments to the plan may be adopted without analysis and public comment. The Roadless Rule amended the 2008 Amended TLMP without following the process set out in the NFMA.
• The Tongass Timber Reform Act (TTRA) of 1990: requires the Forest Service to “seek to provide a supply of timber from the TNF” which meets market demand; an amount determined to be 267 million board feet. Under the restrictions of the Roadless Rule, it would only be possible to harvest 50 mmbf – a shortfall of 73 to 77 mmbf. This takes away the Forest Service’s ability to exercise its discretion to meet market demand and thus effectively repeals Section 101 of the TTRA .
• The National Environment Policy Act (NEPA): This requires agencies to prepare an EIS that includes appropriate alternatives. The Forest Service limited alternatives to only those that precluded road construction, which resulted in insufficient alternatives such as exemptions for hydropower construction, geothermal construction, wind turbine construction and transmission lines. It also failed to consider mineral withdrawal exemptions because they were to be considered in the TLMP. NEPA was also violated because the Forest Service did not prepare a Supplemental Environmental Impact Statement to address the inclusion of the TNF before approving the FEIS

Intervenor’s Claims

• Because most SE communities are nearly surrounded on land by inventoried roadless areas of the TNF, the Roadless Rule significantly limits the ability of communities to develop road and utility connections that almost all other communities in the US take for granted.
• First Things First Alaska Foundation (FTF) is a nonprofit Alaska corporation organized for charitable and/or educational purposes. FTF members engage in natural resource development activities, natural resource development jobs, and natural resource related jobs on the Tongass National Forest in Southeast Alaska. Juneau is the headquarters office and bedroom community for two underground hardrock mines. Both of these mines are located within or are surrounded by IRAs. FTF members participate directly and indirectly in the economies of these two underground mines. FTF participated in the planning and permitting process for the latest of these mines to help educate the populous and others about the importance of development of that mine to the local and regional economy. Continued development of that mine and employment related to its expansion is vital to maintaining the current Juneau population in the face of declining revenues from declining Alaska oil production.
• FTF members participate directly and indirectly in renewable energy (hydro, geothermal, wind, tide, wave, and biomass) on the Tongass National Forest, none of which could be developed in the IRAs due to the 2001 Rule’s prohibitions on road and power line construction and distribution.
• FTF members also participate directly and indirectly in developing hydropower for export to the greater North American electrical grid via the Northern B.C. Hydro power line extension. If the many renewable hydroelectric power sites in Southeast Alaska were linked to the North American Grid, this extensive generating potential could be developed far beyond the power requirements of Southeast Alaska to the betterment of all North American consumers and the economic viability of the region. The inability to construct hydroelectric projects, roads, and power lines within the IRAs would cause the loss of this opportunity.

Other Intervenors

• Alaska Electric Light and Power
• Alaska Power and Telephone
• Alaska Marine Lines, Inc.
• Alaska Miners’ Association
• Citizens Pro Road
• City of Craig
• Durette Construction
• Hyak Mining Co
• Inside Passage Electric Cooperative
• Juneau Chamber of Commerce
• Ketchikan Gateway Borough
• Ketchikan Public Utilities
• Northwest Mining Association
• Southeast Roadbuilders, Inc.
• Southeast Stevedoring Corp
• Chris Gerondale

How to Contribute

• Donations are tax deductible.
• Donors can chose have their name and/or company name published as a proud supporter of First Things First Alaska Foundation.
• Checks can be mailed to PO Box 240206, Douglas AK 99824
• Credit card donations can be made (using Pay Pal) online at www.ftffoundation.org/contributions

Prepared by Mindy Rowland, Former Executive Director, First Things First Alaska Foundation, (907)209-1797